II. Developing a flexible international definition of Sustainable Development to apply universally. However an overly prescription or limited definition of Sustainable Development will hamper the development of law though other channels.

III. Considering the role of guidance to be used as a mechanism to give effect to duties.

IV. Considering the extent that regulations should be made consistent to ensure that reporting obligations are published, monitored and reviewed and to ensure consistency in the process, content and quality of information.

V. Developing mechanisms to ensure that information provided in voluntary and mandatory reports are meaningful. This could probably be addressed through increased auditing requirements and developing the role of regulators in both guidance and enforcement capacities.

VI. Developing regulation to ensure reporting obligations on local government are publicised, monitored and reviewed.

VII. Scrutinising the interaction between the role of law and the development of international standards more closely.

VIII. Giving consideration to an international court for the environment.

The UK Environmental Law Association

1. The UK Environmental Law Association aims to make the law work for a better environment and to improve understanding and awareness of environmental law. UKELA?s members are involved in the practice, study or formulation of Environmental Law in the UK and the European Union. It attracts both lawyers and non-lawyers and has a broad membership from the private and public sectors.

2. UKELA?s current priorities include:

· Informing and actively influencing the broad law and policy debate on climate change including the measures to reduce greenhouse gas emissions and manage their impacts at the international, EU and domestic level

· Helping deliver more effective and efficient environmental regulation including enforcement at the EU and UK level, not lower standards nor less regulation unless the same or better outcomes will be achieved

3. UKELA works on a UK basis and seeks to ensure that best legislation and practice are achieved across the devolved jurisdictions.

Issues

1.1 Terminology

Proposed outcome: that the Rio Conference achieves consistency in language and terminology relating to sustainable development.

Reasons

4. The term ?Sustainable development? was conceived to reconcile tension between environmental and developmental concerns. The term is used globally in policies, strategies and treaties such as UNFCCC. It is often also used interchangeably with the term ?sustainability? although the terms denote different things. ?Sustainability? is used to describe an aspiration for finding a better way for humans to live within our support system. ?Sustainable Development? is the policy manifestation of society?s attempt to achieve that goal.

5. The inconsistent and vague use of language is a fundamental issue that needs addressing to provide an agreed outcome on how the goal of sustainable development should be reflected in legal systems. For example, research, standards and policy documents often refer to ?the principle of sustainable development? or ?principles of sustainable development? or the objective of ?sustainable development?. The lack of consistency and precision is probably a reflection of the diverse stakeholders interested in the development of sustainable development.

6. In legal terms a ?principle? is a rule or standard that:

· is undisputed in legal doctrine

· does not need to be proved

· provides a foundation for the development of other laws and regulations.

7. There are generally accepted principles associated with environmental law and policy, such as the precautionary principle and the preventative principle, that are used to underpin environmental laws at all levels. Sustainable development is often cited as one of these. These principles are general guides to action rather than detailed rules. The status of these principles can alter because of changes in policy. For example, as a result of changes in waste policy the proximity principle is no longer a central principle of EC waste management law. Other principles are so well established that there is discussion on their status as binding norms of international law.

1.2 Definitions and the law

Proposed outcome: that the Rio Conference:

· achieves consensus on the development of a flexible international definition of Sustainable Development to apply universally. However an overly prescription or limited definition of Sustainable Development will hamper the development of law though other channels.

· considers the role of guidance to be used as a mechanism to give effect to duties

Reasons

8. The most commonly referred definition of Sustainable Development is ?Development that meets the needs of the present without compromising the ability of future generations to meet their own needs?.[1]

9. No definition of Sustainable Development is found in primary International, European or UK law. The European Union has used the Environmental Impact Assessment Directive and the Strategic Environmental Assessment Directive as means to give effect to the objective of Sustainable Development.

10. Whether ?the law? has played a secondary role in the development of the definition as a global term is an issue that has been raised on many levels. The ?law? can operate on different jurisdictional levels but it is also a term that encompasses:

- the law expressed as a statutory duty/right

- the law embodied in Contract

- the law of Tort

Duties and rights

11. Whilst the term ?sustainable development? is used in some UK and Scottish statutes, there is no definition within the statutes.

12. Where Sustainable Development is expressed as a duty in legislation, the statute requires that a particular body or group of public bodies should act in a certain way. Some of the duties are mandatory but vary in their clarity, strength and the extent they are qualified by other provisions. The discretions that are introduced can be formulated in a broad way, or be limited to ensure that the authority acts in a way that constrains or structures the discretion.

13. Conferring rights on parties in the context of Sustainable Development may require a shift in legal boundaries: for example, it might create new causes of action such as a right to challenge development based on the global allocation of natural resources; or confer standing (locus standi) on currently unrecognised claimants (e.g. NGOs standing as advocates for future generations). This is not impossible, taking into account intergenerational principles and the growing application of wild law.

Contract

14. The use of contract as a body of law governing relations between legal persons is another area where the law concerning the application of the goal of sustainable development may lead to legal development, notwithstanding the lack of a precise definition. Whilst the use of express contract provisions, memorandum of understandings and side letters are means employed to ensure that the economic, environmental and social objectives of sustainable development are incorporated into a contract, enforcement for breach of these terms will depend on how the courts interpret the express terms of the contract. Although the UK courts have not had to provide a judgment on whether sustainable development is an implied term in a contract (necessary for ?business efficacy?), it is not impossible that a court in the future could be asked to provide a judgement on the issue, particularly where the trend is towards business and government developing the objectives of sustainable development and sustainability reporting. For example, it may be an implied term of a contract for the design and build of a new commercial building with a projected lifespan of 30 ? 70 years (depending on location) that it is both resilient to the reasonably foreseeable impacts of climate change and ?sustainable?.

Tort

15. The question of whether a party has a ?duty of care? owed in relation to sustainable development principles will depend on the nature of the transactions between the parties. Where sustainability is key to a contract (for example in public procurement) there may be room to argue for damages or restitution for unjust enrichment where one party has failed to carry out its services in accordance with what is required.

Highlighting the issues

16. One of the reasons that legislation has played a secondary role in the development of the meaning of the term ?sustainable development? is that the law expressed as a statutory duty, had not been a major driver to ensure the achievement of sustainable development. Arguably, the efficient drivers are energy efficiency costs and savings/resource shortages/business reputation.

17. One problem with an imprecise definition is that it is more difficult for the courts to interpret and enforce in a way that is consistent with the legislature?s intentions. Where duties are imposed by legislation on an agency including the terms ?sustainability?, without an exact definition, this can give rise to issues. For example, Natural Heritage (Scotland) Act 1991 required Scottish Natural Heritage (SNH) to ?have regard to the desirability of securing that anything done whether by SNH or any other person, in relation to the natural heritage of Scotland is undertaken in a manner that is sustainable. The Act provided no definition of ?sustainable? and consequently SNH had to define the term for its own purposes. Given the need for integrated solutions as a matter of public policy it is not useful for every agency to develop its own definition and approach to sustainable development.

18. On the other hand, the imprecise nature of the term may allow for it to be less static and the provision of ministerial guidance in exercising the ?sustainable development? objective or duty can be a beneficial approach.

19. There is also the issue of enforcement. None of the statutes create criminal or administrative offences in relation to sustainable development.

20. Sections 1.3 ? 1.5 give further legal background on the current issues concerning the application of ?sustainable development ?.

1.3 Principles incorporated into Sustainable Development

21. There are generally accepted principles associated with environmental law and policy, such as the precautionary principle and the preventative principle, that are used to underpin environmental laws at all levels. Sustainable development is often cited as one of these. These principles are general guides to action rather than detailed rules.

22. The concept of sustainable development incorporates the principles of intergenerational equity, the sustainable use of natural resources, equitable use of resources and the principle of integration. Sustainable Development was initially reflected in EU law through the ?integration principle?. The integration principle is set out in Article 11 of the Treaty on the Functioning of the European Union as ?Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities, in particular with a view to promoting sustainable development?.

23. Intergenerational equity is the principle of administering and preserving resources and assets (such as quality and diversity of environment), which do not belong to any generation but are to be administered and preserved in trust for all future generations.

24. Intergenerational equity is argued to be a key principle underpinning sustainable development, as inequities are a cause of environmental degradation. Poverty deprives people of their ability to exercise choices in an environmentally sound manner.

1.4 The approach of the International Court of Justice and the European Court of Justice

25. In international law, sustainable development as a legal concept has tended to be found in mostly ?soft law' documents such as Agenda 21.

26. In Gabcikovo-Nagyamaros Project (judgement 25 September 1997, para 140) the International Court of Justice referred to Sustainable Development as a concept which necessitates the reconciliation of economic imperatives with environmental protection, thus enhancing its understanding in international law. There is academic opinion that by invoking the concept of sustainable development, the ICJ indicates that the term has a legal function and both a procedural/temporal aspect. In a separate opinion, Vice President Weeramanty discussed the role of sustainable development in international law in the context of legal instruments and the historical background, concluding that: ?the principle of sustainable development is ... a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community?.

27. Before the Lisbon Treaty the 1992 Treaty of the European Union set an objective to ?promote economic and social progress which is balanced and sustainable?. The Lisbon Treaty changed the wording by committing to sustainable development as a concept in its own right (Article 3(3) of the revised version of the Treaty on European Union).

28. There are very few references to Sustainable Development in EU case law. The following cases have dealt with the principles indirectly: Greece v Council Case 62/88 and the Court of the First Instances judgment in Artegodan v Commission, Case T-74/00) where it referred to ?the protection of public health, safety and environment is to take precedence over economic reform?. These two examples are by no means exhaustive.

29. In the last decade, there have been increasing developments in the reasoning of the European courts in relation to sustainable development as a concept, and the environmental principles that are said to comprise it (the precautionary principle and polluter pays principle in particular). These legal developments have given a higher profile to these principles in EU law but do not yet form a coherent body of case law, nor do they compel sustainability-focused policy outcomes. Increasingly academic work is being done to analyse and appraise the complex legal changes being brought about by environmental principles in this particular legal jurisdiction (as well as in others), and the analysis is far from straight forward.[2]

1.5 The approach of the UK courts and legislation

30. In the UK ?sustainable development? is appearing more often in UK and Scottish legislation in a variety of legal forms such as duties, objectives and procedural requirements. There is no standard form of a duty. The provisions vary greatly.[3]

31. The English courts have acknowledged ?sustainability? as a material consideration in local planning decisions. A material consideration is capable of being a main issue in planning law decisions and may deserve significant weight.[4] It is often the case that compliance with sustainability provisions occurs after a successful judicial review process. This is a reactive process and does not ensure compliance with provisions at an early stage. It is also a time consuming and costly process.[5]

32. The coalition government?s proposed text for a presumption in favour of sustainable development included in the Draft National Planning Policy Framework(DCLG, 24 July 2011) includes an extended definition of the ?Bruntdland Definition?. The presumption states: ?There is a presumption in favour of sustainable development at the heart of the planning system, which should be central to the approach taken to both plan making and decision making?. The issue is what this presumption means. Framed that way the presumption appears to promise an easier ride for developers. If there were to be a focus on the global allocation of natural resources to give effect to the concept of ?inter-generational equity? derived from the ?Brundtland defintion? then it might impact on development, by limiting developments to give effect to ?sustainability? in a global context,

1.6 The question of mandatory reporting

Proposed outcomes:

33. It is proposed that the Rio Conference achieves consensus on:

· the extent that regulations should be made consistent to ensure that reporting obligations are published, monitored and reviewed and to ensure consistency in the process, content and quality of information

· developing mechanisms to ensure that information provided in voluntary and mandatory reports is meaningful. This could probably be addressed through increased auditing requirements and developing the role of regulators in both guidance and enforcement capacities

· developing regulation to ensure reporting obligations on local government are publicised, monitored and reviewed

Reasons

34. Companies are using voluntary reporting or are required to produce mandatory reports to demonstrate how they are managing the environmental and social impacts of their operations. In the UK, listed companies are required under the Companies Act 2006, to set out in their business review (using Key Performance Indicators (KPIs)) environmental, employee, social, community and supply chain issues. Although this is a legal requirement there is no statutory reporting standard and no requirement that the information in the enhanced business review is audited. In many cases, research by various companies including government agencies has shown that although voluntary and mandatory reporting has increased there is a lack of meaningful data.

35. Legislation can also be used to ensure reporting obligations on local government are publicised, monitored and reviewed. For example statutes may require Ministers or public bodies to produce a strategy, scheme, plan or report on sustainable development. Although these provisions can be easily complied with the question is how this is monitored and enforced. Judicial review can be used but the process is slow, costly and not the most effective means of enforcement.

1.7 The use of International Standards

Proposed outcomes

36. It is proposed that the Rio Conference addresses the need for closer scrutiny of the interaction between the role of law and the development of international standards.

Reasons

37. Increasingly international standards are being developed to help organisations address issues like life cycle of products, environmental impact, and social impact (such as ISO 26000), health and safety and employment issues and implementing sustainability management systems. The International Standards board has recognized the need to produce a guide for all standard writers with guidelines for addressing sustainability issues. As definitions such as ?sustainability ? are being developed, the lack of an international agreement on the term will impact on the application of the principle in all standards that refer to the guide.

1.8 The issue of international resolution of disputes

Proposed outcome

38. It is proposed that the Rio Conference considers the case for an international court for the environment.

Reasons

39. Environmental disputes at a domestic and international level are becoming more frequent. This includes actions on misrepresentations by companies in their CSR policies. Resolving disputes at international level is problematic. Often routes such as arbitration are preferred and very little resort is had to the International Court of Justice. The use of different procedures to determine resolutions also leads to inconsistencies. The appellate division of the World Trade Organization also hears environmental cases. However there is also the issue of a lack of enforcement action.

40. For a further discussion on the international dispute resolution see the submission to the Rio 2012 by the BOND-DEG ? UK NGO?s joint Rio Narrative

mso-bi!�.otp� �S ymbol'>· To better integrate sustainable development policies within the UN system, governments need to support overall integrative mechanisms within the UN system that better align the social, economic and environmental pillars of sustainable development.

· In order to strengthen national governance, other policy instruments can complement regulation if they are carefully designed. But they are not panaceas.

· International economic institutions must advance transitions to a sustainable economy, including by multilaterally harmonized systems that allow for discriminating between products on the basis of production processes, based on multilateral agreement. Global trade and investment regimes must be embedded in a normative context of social, developmental, and environmental values.

· In order to fill regulatory gaps in international sustainability governance, new or strengthened international regulatory frameworks are needed in several areas, including on emerging technologies, water, food, and energy.

· Public?private governance networks and partnerships should be streamlined and strengthened. However, there is still a strong need for effective and decisive governmental action.

· Concerted, global and immediate action is needed to reduce the risk of fundamentally disrupting the stability of the Earth system, with consequences for global economic and political systems. Actions to enhance the resilience and decrease the vulnerability of human communities are also urgently needed. This must be accompanied by concerted global and enhanced action aimed at bridging the development gap between North and South and eradicating poverty, taking into account a growing world population.

· Other immediate challenges to be addressed include: ocean acidification, pollution and overfishing; disruption of the nitrogen and phosphorus cycles; global chemical pollution; deforestation; and megacities and urbanization; all of which need action based on the latest science and technology, coordinated targeted observations and research, and improved governance.

· Addressing human health needs and concerns should generally be among the priority actions towards sustainable development and poverty eradication. It should also be central in addressing most if not all new and emerging challenges identified above. The increasing global mobility of people, animals and goods, as well as global warming, is leading to new disease risks in countries and regions where these diseases did not occur before.

(see the series of 9 Rio+20 policy briefs ? www.icsu.org/rio20/policy-briefs).

Climate change:

· The immediate priority is to stabilize the global climate at a temperature of no more than 2°C above pre-industrial levels. We must reduce the carbon intensity of the global economy, undertake a massive decarbonisation of the energy sector, and effectively manage Earth?s carbon and radiant energy budgets.

· As climate change is already occurring, action is needed by all countries to design and implement strategies to adapt to the consequences of climate change and to limit its socio-economic costs for societies worldwide, with a particular focus on the most vulnerable regions, nations and socio-economic groups. Participation of a broad range of stakeholders will be essential in this undertaking.

· Action is also critical in the domain of science. We must continue to improve our understanding of the climate and Earth system, to refine our predictive tools and reduce uncertainties in projections of future climate and its impacts, particularly at the regional level. Social science research into adaptation and good governance will also be crucial.

Water security:

· Water security is vital to all social and economic sectors as well as the natural resource base on which the world depends. But an expanding population, growing economies and poor water management are putting unprecedented pressure on our freshwater resources.

· We simply cannot continue to use water as wastefully as we have in the past; we have to change the way we manage our water resources.

· Scientists and policy makers have a joint responsibility to work together in the development of more sustainable solutions to existing and emerging water problems.

· Water must be given the prominence it deserves on the global agenda

· Human and environmental water needs must be balanced to safeguard biodiversity and ecosystem services. Unavoidable compromises should be mediated by science rather than lobbies.

· Water security has multiple dimensions, including social, humanitarian, economic and ecological. Major decisions on water resource management must be made therefore with broad cross-sectoral input.

· There is a need to improve the availability of data and information, particularly on transboundary water resources and planetary thresholds. We need to evaluate our water needs and prioritize allocations.

· There is a need to introduce and implement strong policy and legal frameworks (i.e. water laws).

· Proper finance mechanisms are required to ensure sustainability of water services, while capacity building is required at all levels.

· The planet needs to feed an estimated 9 billion people by 2050. There will be a need for a knowledge-based focus on enhancing sustainable production and productivity: increasing yields while minimizing environmental footprints.

· Waste reduction at all stages of the food system (post harvest losses, transport, storage) and resolving distribution issues is also essential, as this would provide much of the extra food needed for a growing population.

· A strong foundation of multi-lateral and cooperative mechanisms that work across disciplines, sectors and national boundaries needs to be put in place. Institutions operating effectively at multiple levels will be at the centre of sustainable food systems; these will need to be flexible, promote appropriate use of innovative technologies and policies, and recognize the increasingly important role of non-state actors in enhancing food systems.

· As the greatest proportion of the world?s poor are small-scale farmers, agriculture must also be a key focus for poverty eradication.

· Investment is needed in training, knowledge sharing and extension services for farmers at all scales.

· Greater involvement of farmers, including small holders and big agro business, in planning and decision making is needed.

· Research is needed for multiscale, multi-level analyses of the dynamic linkages between food security, environmental concerns and development issues.

· A food systems approach is recommended. This links the activities of producing, processing, retailing and consuming food with the outcomes of these activities for food security and other societal goals, showing how food insecurity arises and also providing a framework for policy development to meet the food security challenge.

· A transition to healthier diets as societies grow richer is needed to reduce both environmental and public health burdens.

· Food trade needs to be enhanced to encourage secure access to nutritious food for the poorest and most vulnerable.

· There is an urgent need to develop technologies and policies that will result in sustainable production practices.

· Above all, there is need for a strong focus on resilience, equity and sustainability.

· We share this planet with millions of other species and varieties of life, and depend on ecosystems for all our basic needs. While current trends in biodiversity and ecosystem services are sharply and dangerously negative, the right actions, developed and implemented promptly, can restore a biologically rich and ecologically viable planet.

· The multiple values of biodiversity and ecosystem services should be incorporated into policy and management decisions.

· Green economies should be created based on ?inclusive wealth?, which includes all forms of capital ? natural, social and human as well as financial and manufactured ? and in which intergenerational wellbeing increases over time.

· Biodiversity and ecosystem services should be incorporated into water and land-use planning at all scales from local to global, including both protected areas and production landscapes and seascapes.

· Policies and practices should be implemented that reduce inequities in access to the benefits derived from biodiversity and ecosystem services, and ensure that those who bear the cost of their provision are fairly compensated.

· Ecosystem governance and management should be restructured to recognize that ecosystems transcend political boundaries.

· Global governance institutions should be developed that work in partnership with national institutions, local organizations and the private sector, to address global-scale drivers of biodiversity change.

· The Strategic Plan for Biodiversity 2011?2020 and the Aichi Targets should be implemented at all scales.

· The important contributions played by the planet?s forests and oceans should be recognised and terrestrial and marine ecosystems should be linked in policy planning.

· Indigenous peoples and their knowledge should be involved in biodiversity research and in the development of conservation strategies and plans.

· There is no uniform solution for making low-emissions sustainable energy available globally, including for more than one billion people without access to modern energy services. Decisions regarding the use of any given energy technology must be based upon thorough analyses of technological and economic feasibility, diverse energy needs, as well as analyses of long-term sustainability and compatibility with the goals of climate stability, environmental protection, social equity, and personal health and safety.

· The optimal energy mix for any particular country and sector will depend upon the natural resource base, trade access to energy sources and socio-economic context.

· Efforts to further develop and deploy energy technologies must focus in particular on technologies for energy efficiency and conservation, as well as on advanced renewable energy systems.

· In this context, R&D and investment in renewable and alternative sources of energy should be significantly stepped up; including feed-in-tariffs to incentivise investment in renewable energy.

· There is a need to develop strategies for achieving greater energy efficiency in all sectors, notably the construction and transport sectors.

· In the transportation sector, urgently needed actions include diversification of engine fuels, increased use of low-emissions vehicles, and a strong emphasis on urban mass transit. Enhancing support for R&D in this sector will be essential.

· The world faces an increasing loss of human lives, livelihoods and economic assets due to natural and human induced disasters. There is an intrinsic relationship between disaster risk reduction, sustainable development and poverty eradication. An urgent priority is to strengthen significantly disaster preparedness using knowledge, innovation and education for effective response at all levels.

· Integrated natural and social sciences research should be developed, including improved methods for predictive multi-risk assessment and socioeconomic cost-benefit analysis of risk reduction action at all levels. The technical and scientific capacity to develop and apply methodologies, studies and models to assess vulnerabilities to and the impacts of hazards should also be strengthened.

· The resilience of nations and communities to disasters should be enhanced through people-centred approaches to the entire disaster risk cycle, including prevention, preparedness and emergency response as well as recovery and rehabilitation.

Sustainable consumption:

· Unsustainable consumption patterns in industrialized countries and in some parts of the emerging and developing economies are one of the main factors putting increasing pressure on the planet?s social, economic and environmental systems.

· Addressing this problem requires urgent action, and this should be considered throughout efforts to move towards a green economy and sustainable development.

· Practical action, including awareness raising and education, should be underpinned by appropriate knowledge and transdisciplinary research across the multidimensional factors of economics, waste and environment, human behaviour, and lifestyle.

· Communication of clear messages to the public on sustainable consumption and waste reduction will be key, as will clear strategies for public action.

These recommendations are taken from work by the worldwide international scientific community for Rio+20, particularly a series of ICSU-UNESCO regional science and technology workshops in the five UN geo-political regions (see: www.icsu.org/rio20/regional-workshops) and a series of nine policy briefs prepared specifically for Rio+20 (see: www.icsu.org/rio20/policy-briefs) in the context of the Planet Under Pressure science and policy conference (London, 26-29 March 2012).The recommendations also draw on consultations with the constituencies of the scientific and technological community spanning all relevant disciplines in the natural, social, economic, engineering and health sciences, in cooperation with the International Social Science Council (ISSC), the World Federation of Engineering Organization (WFEO), UNESCO, WMO, UNEP and UNU. For further information and recommendations from a disciplinary perspective see submissions for Rio+20 by ICSU?s Scientific Union Members (www.icsu.org/rio20/icsu-members).